Luke Marsh

Joint Criminal Enterprise: Cambodia’s Reply to Tadić

The doctrine of Joint Criminal Enterprise (JCE), which imposes individual criminal responsibility on an accused for their participation in a group’s common criminal plan, rose to prominence in the ICTY Appeal Chamber decision, Prosecutor v. Tadic . Since Tadic, there has been a general reluctance by international ad hoc tribunals to review the legal foundation of JCE. However, on 20 May 2010, the ECCC Pre-Trial Chamber (PTC) considered the applicability of JCE to the atrocities which occurred in Cambodia during 1975-1979 - the period within the tribunal’s temporal jurisdiction. The PTC has, unlike any other ad hoc tribunal to date, subjected the reasoning in Tadic to close scrutiny. This article will analyse the PTC’s decision. In squarely contradicting Tadic on the expanded form of JCE, its findings are to be welcomed. The PTC’s decision should be upheld on appeal in order to uphold the principle of legality; to safeguard the continued respect, credibility and future legacy of the ECCC trial process.

Reflections on a high school mooting competition: bridging the gap between secondary and tertiary education

This article explores ways in which mooting can provide high school students with insight into life as a law student. In gaining high school students’ insights on their early exposure to a legal research skills environment involving oral argumentation exercises, the authors argue that law schools can incorporate experiential learning pedagogies into student recruitment efforts to ensure that both law school and prospective student are better prepared for each other during the delivery and study of law at university level.

Adversarialism goes West Case management in criminal courts

This article examines the approach of criminal courts in England and Wales to case management alongside the contradictory pressures placed upon the pre-trial role of the defence advocate, when advising on plea, which have led to the erosion of the adversary ideal. It focuses on the overarching procedural code that ‘governs’ the relationship between defence lawyers and the judiciary in the conduct of criminal cases (the Criminal Procedure Rules) and draws upon a recent important decision which extends the antipathy of the courts towards adversarial advocacy. The conclusion drawn is that traditional understandings of the adversarial advocate have expired together with the duty of defence lawyers to ‘promote fearlessly and by all proper and lawful means the client’s best interests’.

Leveson’s narrow pursuit of justice: Efficiency and outcomes in the criminal process

Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings (2015) represents the latest judicial effort in England and Wales supporting executive attempts, under the guise of ‘efficiency’ measures, to scale back protections traditionally afforded to criminal defendants and has dramatic implications for the maintenance of accurate case outcomes. This includes the integrity of the prosecution process, in particular the reliability of CPS decision-making; the quality and completeness of the disclosure regime; the culture of the CPS; and its management and oversight. This article will argue that the Review adopts a narrow approach to ‘efficiency’ which takes no account of the interest in the accuracy of verdicts, as set out in Rule 1.1.(2)(a) of the Criminal Procedure Rules, and will have no bearing upon the ‘real inefficiencies’ of the process. What appears to be the core of the Review is in fact floss surrounding its competing ambition: shifting cases to magistrates, intensifying pressure to plead guilty, marginalizing the defence, and diminishing jury trial.

Same Sex Marriage in Hong Kong: The Case for a Constitutional Right

Following a landmark ruling of Hong Kongs Court of Final Appeal, there is good reason to believe that a future challenge to legislation restricting marriage to opposite sex couples will be successful. Through the lens of W v. Registrar of Marriages, this article argues that the right to marry in Hong Kong is to be understood as an evolving concept and subject to a living interpretation by the courts. The governments argument that the courts should defer to the legislatures interpretation of the right to marry, in order to ascertain ‘societal consensus’, is challenged. Furthermore, it is argued that the government is unable to furnish good reasons to justify the restriction on the right of same-sex couples to marry. Throughout the article, both Hong Kong case law and relevant comparative jurisprudence inform the discussion.

Fostering Civic Engagement in Legal Education: Observations from Hong Kong

In 2001 the Redmond–Roper Report on Legal Education and Training in Hong Kong outlined major concerns relating to the quality of legal education in Hong Kong, particularly with respect to the overemphasis on black-letter law, teaching methodology that engendered passive learning and a general deficiency in equipping graduates with the legal skills and values necessary to address the needs of the community. Taking the position that fostering civic engagement in curriculum design provides an excellent means to address these concerns, this article examines key initiatives adopted by the Faculty of Law at The Chinese University of Hong Kong. First is an innovative course known as ‘The Individual, the Community and the Law’ which is compulsory for all law students and requires them to undertake a substantial socio-legal research project addressing concerns in the local community. Second is the ‘Refugee Assistance Programme’, a clinic programme that puts students in positions of responsibility to address the unmet legal needs of refugees in Hong Kong. This article will describe the design of these programmes and assess how far these initiatives are able to foster civic engagement and in turn address the concerns of Redmond–Roper.

Developments in Hong Kong Legal Education

The history of legal education in Hong Kong is a history of reform. The various inflection points along its story—the establishment of each of the three law schools, the development of the Postgraduate Certificate in Laws (PCLL) and its role in the legal profession, the Redmond–Roper Report and its aftermath—all demonstrate an effort to develop a legal system appropriate to the specific context of Hong Kong. This article traces these developments with a view to providing further insight into ongoing reviews about the structure of legal education in the territory.

Pathways to Social Transformation through Clinic: Developing a “Social Justice” Culture in Hong Kong

Despite its outward appearance as a model of global economic success, Hong Kong is noted for its wide-ranging social problems.1 Law schools inevitably play a critical role in producing socially responsible and public interest-oriented lawyers, who are essential to the delivery of justice and the protection of human rights. In Hong Kong there is a growing need to strengthen civil society and inspire student lawyers to advance the “public interest.”2 While clinical legal education (CLE) and student advocacy have become a core part of curricula around the globe,3 there has been little exploration of how these two modes of experiential education can be combined convincingly to advance social justice. Our aim here, therefore, is to chart the pathways taken toward the goal of developing a “social justice” culture at university level and beyond through CLE.

Review: Legal Aid Lawyers and the Quest for JusticeNewmanDanielLEGAL AID LAWYERS AND THE QUEST FOR JUSTICE: Hart Publishing (Oxford, 2013); ISBN-10: 1849464332, hbk, 198 pp, £45

While a background concern for several years now, the impact of public funding cuts in England and Wales upon access to the criminal courts and to legal representation has come to the forefront in recent times. The backlash to this has surfaced in striking ways—quite literally with legal aid lawyers staging mass ‘non-attendance’ days in court centres. Conversely, the public reception to the plight of criminal lawyers has appeared largely unsympathetic or marked by disinterest.